TROLIS KIRBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court, the Second District Court of Appeal reaffirms its denial of Kirby's Rule 3.800(a) motion challenging his life sentence for sexual battery. Although the court's initial citation to Plott I was later deemed erroneous by the Supreme Court, the court holds that Kirby's sentence remains legal because it falls within the statutory maximum and the jury necessarily found all required elements of the offense.
The court affirms the denial of Kirby's Rule 3.800(a) motion. Although the initial citation to Plott I was superfluous and that decision was later quashed, Kirby's sentence is not illegal under Apprendi because his life sentence fell within the statutory maximum for the offense and the jury necessarily found that the State proved all elements of the crime beyond a reasonable doubt.
[1] A claim that an upward-departure sentence violates Apprendi and Blakely is not cognizable in a rule 3.800(a) motion if the sentence is within the statutory maximum and th…
[2] A prior appellate court's citation to a now-erroneous precedent does not bind the court to that precedent when reconsidering the case on remand.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the jury necessarily found that the State proved the elements of the crime beyond a reasonable doubt, so his sentence is not illegal under Apprendi”
Establishes the court's holding that because all elements were proven to the jury, no Apprendi violation occurred despite the sentence being within statutory maximum
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Join FLexlaw to unlock all legal intelligenceTrolis Kirby was convicted of sexual battery under Florida Statute 794.011(3), which required jury findings that he committed sexual battery on a pers…
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• ON REMAND FROM THE SÜPREME ‘ COURT OF FLORIDA
This court cited Plott v. State, 86 So.3d 516 (Fla. 2d DCA 2012) (Plott I), when we per curiam affirmed in a citation-only opinion, the postconviction court’s denial of Trolis Kirby’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Kirby v. State, 100 So.3d 693 (Fla. 2d DCA 2012) (table decision). In Plott I, we held the defendant’s claim that his upward-departure sentence imposed on resentencing violated the dictates of Ap-prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), constituted an error in the sentencing process and was not cognizable in a rule 3.800(a) motion. Plott I, 86 So.3d at 518-19. However, the supreme court later quashed this ■ court’s opinion in Plott I and held that Mr. Plott’s claim that his senténces were unconstitutionally enhanced without a factual finding by a jury was cognizable in a rule 3.800(a) motion. Plott v. State, 148 So.3d 90, 95 (Fla.2014) (Plott II). Furthermore, the supreme court instructed this court to perform'a harmless error analysis on remand. Id. Based upon this court’s citation to Plott I in the per .curiam opinion, Mr. Kirby successfully sought review in the *16supreme court, which remanded for this court to reconsider this case in light of Plott II. Kirby v. State, 163 So.3d 510 (Fla.2015) (table decision). However, as explained below, the citation to Plott I was superfluous to this court’s decision, and we again affirm.
Mr. Kirby was charged with, convicted of, and sentenced to life in prison for a life felony in contravention of section 794.011(3), Florida Statutes (1999), which required the jury to find — as elements of the offense — that he committed sexual battery on a person twelve years or older, without the victim’s consent, and in the process used or threatened to use a deadly weapon or used actual physical force likely to cause serious personal injury. In his rule 3.800(a) motion, Mr. Kirby claimed that the lack of a jury finding on the elements of actual physical force or use or threat to use a deadly weapon rendered his sentence illegal under Apprendi, 530 U.S. at 466, 120 S.Ct. 2348. But Mr. Kirby’s life sentence was within the statutory maximum for the offense and the jury necessarily found that the State proved the elements of the crime beyond a reasonable doubt, so his sentence is not illegal under Apprendi.
Our citation to Plott I in the Kirby decision was merely meant to inform Mr. Kirby of this court’s opinion — now held to be erroneous — that Apprendi errors of the sort Mr. Kirby claimed existed were not cognizable in a rule 3.800(a) motion. Moreover, we also appropriately cited Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004), to indicate that Mr. Kirby’s challenge was essentially to the proof of the underlying elements of the offense and not to the illegality of the sentence. This is not a case in which the principles of either Apprendi or Plott I are implicated. As stated above, the citation to Plott I was unnecessary and did not constitute the basis for this court’s affirmance. Having again reviewed the record on appeal, we hold that the postconviction court properly denied Mr. Kirby’s rule 3.800(a) motion, and we affirm.
Affirmed.
NORTHCUTT and SILBERMAN,1 JJ., concur.
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Curls v. State, 216 So. 3d 761 (Fla. 2d DCA 2017)…PER CURIAM. Affirmed. See Tucker v. State, 726 So. 2d 768 (Fla. 1999); Kirby v. State, 198 So. 3d 15 (Fla. 2d DCA 2015); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Pratte v. State, 946 So. 2d 1184 (Fla. 2d DCA 2006); Bizzell v. State, 912…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004)
- Plott v. State, 148 So. 3d 90 (Fla. 2014)
- Plott v. State, 86 So. 3d 516 (Fla. 2d DCA 2012)